Decade Altering Decision in Housing Law

Tuesday 13 May 2008

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In reaching its decision the European Court was unable to accept the Government's argument that the reasoning in Connors was to be confined only to cases involving the eviction of gypsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case. The loss of one's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.

As in Connors, the "procedural safeguards" required by Article 8 for the assessment of the proportionality of the interference were not met by the possibility for the applicant to apply for judicial review and to obtain a scrutiny by the courts of the lawfulness and reasonableness of the local authority's decisions.

The court does not accept that the grant of the right to the occupier to raise an issue under Article 8 would have serious consequences for the functioning of the system or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed (see paragraph 28 above), it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings.

In commenting about the case, which has been referred to as a 'decade altering decision', Stephen Cottle said "This is article 8 as we always understood it".

Stephen Cottle of Garden Court's Housing Team was instructed by Eric Bowes & Co of Solihull.

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